Volume. 3 Issue. 9 – April 3, 2019

No Return to Work Except for the “CAT”

In this release, we feature three post-104 IRB decisions. From misquoted key evidence in a denial to a failure to consider “the competitive, real world setting”, important post-104 considerations are made clear. The range of results includes a third case where it was found that returning to work would be beneficial for the Applicant, who was deemed to be “CAT”,.

Misquoted – In 17-008689 v Portage, addressing post-104 IRB entitlement, the Tribunal began by addressing the Applicant’s neuropsychological report, which the Respondent misquoted. The assessor “wrote that the applicant’s neuropsychological impairments do not prevent the applicant from doing her regular employment in a ‘total’ manner, not a ‘regular’ manner as the respondent wrote”.

In addition, the Respondent omitted key aspects of the report, specifically the assessor’s indication that “while [the Applicant’s] neuropsychological impairments do not prevent the applicant from doing her regular employment in a total manner, they likely do reduce her accuracy, proficiency and productivity while at work”. The same assessor also concluded that the Applicant’s cognitive impairments were affecting her daily function.

“In light of the applicant’s cognitive impairments that include ongoing forgetfulness; dizziness; and mood difficulties, I find that the applicant is entitled to post-104 IRB…Given her mood difficulties and dizziness, I find the applicant would not be able to work as counter or kitchen help on a regular basis. Further, the applicant has tried to return to work without success.”

That’s the Spirit – In 18-001878 v Guarantee, another successful claim for post-104 IRB, the Respondent proposed options reflecting the fact that the Applicant has a history of self-employment and a “true entrepreneurial spirit”. However, the Tribunal noted that “the test involves considering the competitive, real world setting, and I find that the applicant’s past entrepreneurial endeavours have involved having to do the physical work as well, and it is unrealistic to imagine that the applicant has the skills or experience that would enable her to start a business that would not require her to do the physical work required. As such, despite her entrepreneurial spirit and experience, I find she could not return to self-employment.” Noting the lack of any attempted work returns, it was found that “given the constellation of pain symptoms as well as her intake of medications and her headaches, it is not unreasonable that she has not tried to return to work”.

Absurd Ticket-Taker Job Suggestion – In 18-000169 v TD, a decision reported in the last LAT inFORMER, in which the Applicant was determined to be CAT due to a marked impairment in the adaptation domain, his post-104 employment capacity was also addressed. It was noted that the Applicant nonetheless had “the physical capability to do many things. This is echoed in many reports and by [the Applicant] himself.” Noting pre-accident employment to be “solitary, independent physical activities”, the Tribunal saw “no reason why he could not successfully return to these pursuits on a part-time or graduated basis, as he did prior to the accident”.

Dismissing arguments related to “the absurd ‘ticket-taker’ job suggestion”, it was found that “a return to his pre-accident self-employment may even be beneficial to [the Applicant], as he clearly enjoyed it and was good at it”. “To return to [the assessor]’s remarks: I find that [the Applicant]’s physical function as it pertains to this type of employment is useful function.”

Not by “Accident” – Ice and Fall as Intervening Causes?

The Tribunal continues to consider the “Definition of Accident” with varied interpretations of the impact of “falling”. In two cases where the Applicant slipped and fell on ice, it was determined that the ‘ice’ was the intervening cause whereas in another the ‘fall’ itself was the intervening cause.

To perhaps complicate matters in a yet to be reported decision on CanLII (provided to inHEALTH in October 2018), the Applicant stepping out of his car onto a rebar and falling was found not to be an intervening cause. It is unclear how this decision differs from the other three – Does ‘but for’ not properly apply to all?

Blame It on the Ice – In 18-002820 v Aviva, an unreported decision provided to us by Danielle Wilkinson at Aviva Trial Lawyers, the Applicant filed a WSIB application after having fallen in the parking lot at work due to icy/slushy conditions in December 2016. Numerous reports/records of the event simply indicated “fall at work” with no indication that an automobile directly caused the Applicant’s injuries. While there was “no persuasive evidence with regards to the involvement of an automobile in that event”, the Tribunal “preferred the evidence that is found in documents closest in time to the event and there is no mention of an automobile in those documents”.

The Tribunal however took this one “step” further, indicating that even upon accepting the revised version of the Applicant, in which the presence of ice and snow resulted in the fall, “it follows that if she had stepped out of her vehicle on ground without snow and ice, she would not have fallen and sustained the injuries”. “The applicant’s injuries were therefore not caused ‘but for’ the use or operation of an automobile.” Therefore, “the presence of ice on the ground in the parking lot can therefore be said to be an intervening act which caused the applicant to fall and get injured”.

Blame It on the Ice – Take Two – In 18-000468 v Certas, somewhat of a similar fact situation, the Applicant in this instance placed her hand on the car’s door handle, slipped on ice and fell. The Respondent argued that “the applicant’s contemporaneous accounts of the incident as recorded by her care providers, refer to a slip and fall on ice and make no reference to her car. The respondent also notes that in the applicant’s February 15, 2017 letter to her landlord the applicant makes no mention of being in the process of getting into her car when she fell, but rather states that she was walking to her car and fell as a result of the parking lot not being salted and sanded.”

The Tribunal however found that the accounts were not “necessarily inconsistent” as there was no reason to specifically reference her hand being on the door handle as “absence of a reference to her hand being on the car door handle is evidence that the applicant felt the cause of her slip and fall was the ice in the parking lot. There would have been no need for her to provide the information that the respondent indicates is missing.” The evidence “establishes on a balance of probabilities that the applicant had started the process of opening her car door at the time of the incident. I find that the applicant’s car was being put to an ordinary use when she put her hand on the car door handle with the intention of opening the car door.”

However, “there is no evidence that the applicant’s car contributed in any way to causing the applicant to fall or to her injuries. There is no evidence in this case that anything other than the ice in the parking lot caused the applicant to slip and fall…the ice in the parking lot was an intervening cause, and not a foreseeable risk of motoring, that broke the chain of causation.”

Blame It on the Fall – In 18-003869 v Aviva, the Respondent relied upon video evidence of the Applicant having fallen after putting gas in her car, closing the door and beginning to walk away. Confirming that “the use of the vehicle had ended prior to the fall”, the Tribunal then found that “whether or not the applicant slipped on something prior to getting her leg(s) tangled in her purse strap, I find that the applicant’s fall was an intervening act and that the fall, and not the use or operation of her automobile, was the direct cause of her injuries.”

But Don’t Blame It on the Rebar – In 17-008078 v Intact, an unpublished decision reported in October 2018, the Applicant sustained injuries when attempting to step off the rebar located on the borderline line of a parking spot. The Tribunal found that “the injury would not have occurred if it were not for the process of ensuring the car door is closed while exiting the vehicle”, a process which falls within a normal use and operation of the vehicle.

Degrees of LATitude

Well After the Fact Notice

In 18-001945 v Primmum, following three IEs, the Respondent submitted that it sent the Applicant a letter dated March 18, 2016 indicating that entitlement to NEB was denied effective March 31, 2016, with copy of same to her legal representative. The Applicant denied ever having received this letter, contending their first notice was not until January 2018. The Tribunal found, “With no clear evidence before me as to how the March 18, 2016 letter was sent by the respondent and that it was received by the applicant, I am willing to give the applicant the benefit of the doubt and accept that the applicant was first apprised formally of the stoppage of the NEB on January 10, 2018.”

Is the Tribunal in essence condoning significantly after the fact notice of denied entitlement, without seemingly in the least considering the s.37(4) notice obligations? It is also curious that there would be no apparent consideration as to (a) whether the legal representative (at the time) received copy, or (b) whether it is credible that someone receiving NEB for about six months would not somehow raise the matter earlier when no further payments were forthcoming for a period of in excess of 12 months.

Tribunals are Not Courts

In 18-001145 v Economical, in somewhat of a related set of circumstances, the Applicant’s position was that any limitation period should start from the time that she received the letter from the Respondent on July 7, 2016 that alerted her to the July 20, 2015 denial letter, which she denied receiving. In response to the Applicant’s reliance on s.5 of the Limitations Act which sets out the discoverability rule, the Tribunal found that the Limitations Act does not apply to tribunals and the matters that come before it. “The Limitations Act applies only to courts and the litigation issues brought before the courts. Tribunals are not courts and most like this tribunal have their limitation periods to be complied with.” In addition, it was confirmed that the legal representative did receive the latter, and as the representative “has knowledge of the July 20, 2015 letter, that knowledge is imputed to the applicant.”

Would the decision have been the same if there had been no evidence that the representative had been notified?


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